COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Petty and McCullough Argued at Alexandria, Virginia

KATHLEEN C. HAMPTON MEMORANDUM OPINION * BY v. Record No. 1163-13-4 CHIEF JUDGE WALTER S. FELTON, JR. FEBRUARY 25, 2014 VIRGINIA EMPLOYM ENT COMMISSION AND PUBLIC UTILITIES RE PORTS, INC.

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Randy I. Bellows, Judge Jonathan A. Nelson (Day & Johns, PLLC, on briefs), for appellant. Joshua E. Laws, Assi stant Attorney General (K enneth T. Cuccinelli, II, Attorney General, on brief), for appellee Virginia Employment Commission. No brief or argume nt for appellee Public Utilities Reports, Inc.
Kathleen C. Hampton (“claimant”) appeals the judgment of the Fa irfax County Circuit Court (“circuit court”), affirming the decision of the Virginia Employment Commission (“the Commission”) that claimant was in eligible to receive unemployment compensation benefits because she left work voluntaril y without good cause. Claimant asse rts that the circu it court erred by affirming the Commission’s decision because her employer did not meet its burden to prove that claimant left work voluntarily an d that the ruling was unsupported by the evidence in the record. Claimant also contends the circuit court erred by affirming the Co mmission’s decision because the Commission improperly relied on unsworn statem ents by claimant’s former employer in determining that she was ineligible for benefits.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - I. BACKGROUND We “consider the evidence in th e light most favorabl e to the finding by the Commission.” Va. Emp’t Comm’n v. Tren t, 55 Va. App. 560, 565, 687 S.E.2d 99, 101 (2010) (citation omitted). The evidence showed that, from February 11, 2008 to April 18 , 2012, claimant worked as a full-time technical legal editor for Public Utilities Reports, Inc. (“employer”). Phillip Cross (“Cross”) was claimant’s direct supervisor. Cros s worked for employer in his capacity as vice president and human resources officer. Claimant often disagreed with her supervisor regarding employer’s overtime an d paid leave policies. On Monday, April 16, 2012, clai mant called employer to report that she was sick and that she would be unable to work. She returned to work the following day. On Wednesday, April 18, 2012, her supervisor told claimant that she needed to complete a paid time off (“PT O”) form for the day that she had been out of the offi ce. Claimant told her supervisor that she should no t have to fill out a PTO form because she planned to work at leas t forty hours during the remainder of the week. Her supervisor explained to claimant that her po sition was contrary to employer’s policies, and repeated his direction that sh e complete a PTO form for the day she was out of the office. 1 He told claimant that she was not required to work more than forty hours pe r week, that he did not want her to work more than forty hours per week, and that she would not be compensated for hours worked above forty hours. He reiterated to claimant that she needed to account for the day she was out of the office by filling out a PTO form. When claimant continued to ar gue with her supervisor, he to ld her that she “[had] other options” if she did not want to co mplete the PTO form. Claimant asked, “[O]h, like the option to quit[?]” He did not respond to cl aimant’s inquiry. Claimant then asked her supervisor, “You just

1 Because claimant had already allocated her PTO days for the calendar year, her absence on Monday, April 16, would ultimately be deemed unpaid leave.- 3 - don’t want me here anymore, do you?” He replied, “No.” Claimant then told hi m that “[she] [would not] stay where [she] [was] not wanted,” and began to pack he r belongings. When a coworker “begged” her to stay, claimant repeated that she would not stay where she was not wanted and that she would not “put up w ith [such] bullying.” Claimant left the offi ce and did not return. The Commission found that the proximate cause of the claimant’s separation from employment flowed from her action in challenging the supervisor’s instructions over putti ng in a leave form for her April 16th unscheduled absence from work or his refusal to permit her to make up her time for that w eek. This was followe d by the claimant’s raising the subject of her quitting her job, followed byher initiating questioning of the supervisor as to whether he still wanted her there or not. * * * * * * * In the Commission’s opinion, while the employer does assume the burden of non-persuasion as to a vol untary leaving, the claimant’s own evidence clearly demonstrates that she voluntarily walked off the job that day, rather than being discharged from employment. . . . The Commission flatly rejects th e contention that the claimant’s supervisor “provoked” he r into quitting that day, or her arguments to the effect that the re cord fails to evidence a voluntary separation from employment. The circuit court affirmed the Commission’s decision denying unemployment compensation benefits to claimant. It found that claimant’s dispute with her supervisor over employer’s leave policy “was not an objectiv ely reasonable employment dispute.” The circuit court agree[d] with the Commission that “while the supervisor may have acted unprofessionally in acknowl edging that he did not want her there,” he did not fire her that da y, and the dispute centered on a common employment polic y: “most employers require employees to obtain approval or authorization fo r overtime before it is worked.”- 4 - II. ANALYSIS
A. The determination of whether an employee vol untarily quit work with out good cause is a mixed question of law and fact. Snyder v. Va. Emp’t Comm’n, 23 Va. App. 484, 491, 477 S.E.2d 785, 788 (1996). The Co mmission’s legal determinations are reviewed de novo by this Court. Smith v. Va. Emp’t Comm’n & Swif t Transp. Co., 59 Va. App. 516, 519, 721 S. E.2d 18, 20 (2012). However, “the Commission’s findings of fact, if supported by the evidence and in the absence of fraud, are conclusive.” Lee v. Va. Emp’t Comm’n, 1 Va. App. 82, 85 , 335 S.E.2d 104, 106 (1985). Accordingly, “the [Commission’s] findings may be re jected only if, in considering the record as a whole, a reasonable mind would necessarilycome to a different conclu sion.” Craft v. Va. Emp’t Comm’n, 8 Va. App. 607, 609, 383 S.E.2d 271, 273 (1989). Code § 60.2-618(1) provides, in pertinent part , that an employee is ineligible to receive unemployment compensation benefits when the Commission finds th at the employee voluntarily quit work without good cause. The employer bear s the burden of proving that the claimant left work voluntarily. Shuler v. Va. Emp’t Comm’n, 9 Va. App. 147, 150, 384 S. E.2d 122, 124 (1989). If the employer satisfies its burden of proof that the claimant left work voluntarily , the burden of proof shifts to the claimant to demonstrate good cause for leav ing work. Actuar ial Benefits & Design Corp. v. Va. Emp’t Co mm’n, 23 Va. App. 640, 645, 478 S.E.2d 735, 738 (1996). The term “voluntary” connotes “‘ [u]nconstrained by interference; unimpelled by another’s influe nce; spontaneous; acting of oneself . . . [r]esulting from fr ee choice.’” Barnes v. Singer Co., 376 S.E.2d 756, 758 (N.C. 1989) (quoting Black’s Law Dictionary 1413 (5th ed. 1979)). An employee’s intention to quit may be discerned from words or conduc t inconsistent with the maintenance of an employer/employee relationship. See Tate v. Briggs & Stratton Corp., 126 N.W.2d 513, 515 (Wis. 1964). Shuler, 9 Va. App. at 150-51, 384 S.E.2d at 124.- 5 - (i) Here, the record on appeal amply supports the Commission’s fi nding that claimant voluntarily left work. On Apr il 18, 2012, claimant argued with her supervisor over employer’s leave policy, notwithstanding that her supervisor had previously explained the policy to her. Rather than adhere to employer’s policy that she complete a “paid time off” form to account for the day she had been absent from the office, cl aimant suggested that she had the option to quit work. Spurned by what she perceived as a ne gative comment from her supervisor, claimant stated she would not work where she was not want ed, collected her personal belongings from her cubicle, and left the office. She did not c ontact employer again until May 7, 2012, to inquire about unemployment and other benefits. Employ er testified that con tinuing work remained available for claimant after she left the wo rkplace, and the Commission explicitly rejected claimant’s contention that employer “provoked” her to quit. The evid ence in the record established that claimant, of her own accord, acte d in a manner inconsistent with maintaining a working relationship with employer. Accordingl y, the circuit court did not err by affirming the Commission’s finding that employer met its burden to prove that claimant left work voluntarily. (ii) To determine whether good cause existed fo r claimant to voluntarily leave work, the commission and the reviewing courts must first apply an objective standard to the reasonablen ess of the dispute and then to the reasonableness of the employee’s efforts to resolve that dispute before leaving the employment. In making this two-part analysis, the claimant’s claim must be vi ewed from the standpoint of a reasonable employee. Umbarger v. Va. Emp’t Comm’n, 12 Va. App. 431, 435-36, 404 S.E.2d 380, 383 (1991). To constitute “good cause” for quitting work, a claimant must prove that her employer created workplace conditions so intolerable that she “had no reasonable al ternative except to quit her job.” Id. at 436, 404 S.E.2d at 383.- 6 - Here, the Commission found that claimant’s dis pute with her supervisor over employer’s leave policy did not constitute “good cause” fo r leaving work under Code § 60.2-618(1). The Commission found that employer reasonably required its employees to obtain preauthorization for overtime work or for taking time off. In a ddition, applying its longstanding precedent, the Commission determined that “good cause” under Code § 60.2-618(1) cannot be established by an employee who quits her job merely because sh e believes she will eventually be fired. We agree. Claimant’s dispute with employer aros e solely out of her refusal to comply with employer’s uniformly enforced absence policy. Claimant possessed numerous alternatives to quitting, including that she complete the PTO form as required by her employer. The Commission correctly concluded th at claimant’s dispute with employer was not so compelling, necessitous, or substantial that it left her with no reasonable altern ative other than to quit work. Phillips v. Dan River Mills, Inc., Co mmission Decision 2002-C (June 15, 1955). In addition, the Commission correctly conclude d that claimant’s fa ilure to elevate her dispute with her supervisor to the company president was not r easonable. To constitute “good cause” for a claimant to voluntarily leave em ployment, the consistent position of the Commission, “acquiesced in by the General Assembl y,” has required an employee to “take those steps that could be reasonably expected of a pe rson desirous of retaini ng his employment before hazarding the risks of unemployment.” Lee, 1 Va. App. at 85, 335 S.E.2d at 106. Here, claimant failed to notify the company pr esident of her disput e with her supervisor. The Commission found incredible claimant’s asse rtion that she believed the president of the company had no authority over her supervisor, the vice president. Because claimant did not elevate her complaint to the company president, she failed to take a ll reasonably expected step s to resolve her dispute with her supervisor.- 7 - Accordingly, we affirm the decision of the circuit court upholding the Commission’s decision that claimant left work voluntarily a nd without good cause, and was therefore ineligible for unemployment compensation benefits.
B. Claimant also asserts that the circuit cour t erred by finding that the Commission properly considered, as part of the r ecord of the case, employer’s uns worn statements to the deputy examiner. 16 Va. Admin. Code § 5- 80-10(B) provides that: This informal interview [with the deputy examiner] shall not be recorded in any way, although notes can be taken by the deputy. Statements made by parties or wi tnesses shall not be taken under oath and formal examination or cr oss-examination shall not be permitted. The deputy shall direct questions to the parties and witnesses. The parties may also ask questions of each other and the witnesses. Rebuttal to stat ements made by opposing parties or witnesses shall be permitted. . . . The record of facts of the proceeding shall become a part of the commission’s records. (Emphasis added.) See also 16 Va. Admin. Code § 5-80-20(F)(4) (“On motion of the appeals examiner, or any party, documents already in a clai mant’s file or obtained during the course of a hearing may be admitted into the record as exhibits provided they are relevant to the issues in dispute.”). During claimant’s telephonic hearing with th e appeals examiner, th e appeals examiner explained to claimant that his proposed Exhibit 6 contained the record of facts obtained by the deputy examiner, including employer’s statement regarding claimant’s depart ure from the office. The appeals examiner explicitly stated that E xhibit 6 contained “the notes that the deputy [examiner] took when he had the fact finding in terview with both you and the employer.” When the appeals examiner asked claimant if she had any objection to the exhibits being entered into the record, claimant replied, “[n]o, none at all.”- 8 - In Baker v. Babcock & Wilcox Co., 11 Va. App. 419, 399 S.E.2d 630 (1990), this Court held that, where a claimant seeks an initial award of unemployment compensation benefits, she “possesse[s] no absolute constitu tional right of cross-examina tion.” Id. at 427, 399 S.E.2d at 635 (footnote omitted). Moreover, the Commission doe s not err by considering employer’s unsworn statement to the deputy examiner where, as here , claimant did not objec t to entering employer’s statement into the record, and where she did not seek to cross-examine employer at her hearing with the appeals examiner. “If claimant di d not enjoy the right of confrontation and cross-examination or any of the other rights available to [her] under the laws and regulations, it was not because they were denied [her]; it was, insofar as the record discloses, only because [s]he did not pursue them.” Klimko v. Va. Emp’t Comm’n, 216 Va. 750, 762-63, 222 S.E.2d 559, 569-70 (1976). Accordingly, the circuit cour t did not err by finding that the Commission properly considered, as part of the agency reco rd, employer’s unsworn statements to the deputy examiner.
III. CONCLUSION For the foregoing reasons, and for the reasons ar ticulated by the circui t court in its letter opinion, we hold: (i) that th e Commission did not err by considering employer’s unsworn statements to the deputy examiner as part of th e agency record, and (ii) that the Commission did not err by finding claimant ineligible for unemployment compensation benefits. Affirmed.